BAIJ NATH Vs. STATE OF U P

JUDGEMENT

(1.) APPELLANTS Baijnath, Jagar Nath and Hari Nath alias Hari have been convicted by the Sessions Judge, Ghazipur for the offence punishable under Sec. 302/34 IPC. Each of them have been sentenced to undergo life imprisonment on that count. The appellants have now approached this Court by filing this criminal appeal.

(2.) THE prosecution case, shortly stated, is that one Thagga, resident of village Salarpur Police Station Karandai District Ghazipur, was married to one Smt.Jiria. A son named Sewak was born from this union. THEreafter Thagga died and Smt.Jiria was taken as a wife by Sohar, deceased in the instant case. This Sohar was also resident of village Salarpur. A son Hawaldar was born to Smt.Jiria from Sohar deceased. THE appellants are alleged to be collaterals of Thagga. THEy had got a joint house with Thagga in village Salarpur. One-half of the house was in possession of the appellants while Thagga in his life time was possessed of the remaining house. It is alleged that the appellants sold their half share of the house after the death of Thagga and migrated to village Maudhia. It is stated that three or four days before the occurrence which is said to have taken place in the night between second and third of June,, 1973 in a grove situated in village Salarpur, the appellants again returned to the village and they wanted to sell the remaining half of the house which belonged to Thagga. THEy had also expressed a desire to take Sevak son of Thagga with them. Sohar resisted this attempt on the part of the appellants and he even asked them to take money in respect of the half portion of the house which belonged to Thagga. It is then stated that Sohar was sleeping in a grove at the time of the occurrence which is said to have taken place at 1-00 a.m. He woke up on hearing some suspicious sounds. He flashed his torch and saw the three appellants armed with Gandasa and spears. Sohar raised an alarm but in the meanwhile he had been surrounded by the appellants who assaulted Sohar with their respective weapons. On hearing the cries of Sohar, Smt.Jiria and Ram Narain, brother-in-law of Sohar, also arrived at the scene of occurrence. However, before the arrival of the wttnesses, the appellants made good their escape.

(3.) THE Sessions Judge has come to the conclusion that the alleged dying declaration contained in the first information report was sufficient to fasten the guilt on the appellants under section 302/384 IPC. It is in this view of the matter that he has recorded the order of conviction and sentence, as stated above. THE correctness of the view of the Sessions Judge has been strongly assailed before us. It may be stated that after the death of Sohar, Nagina Prasad Singh SI (PW 5) conducted the inquest on the dead body of Sohar at the police station itself. He thereafter sent the dead body for autopsy. THE postmortem on the dead body was conducted by Dr. C. B. Singh on 7-6-1973 at 3-00 P. M. at Ghazipur. We shall state a little later the nature of the injuries sustained by the deceased. At this stage, we may point out that the investigating officer visited village Salarpur and prepared a site plan of the grove in which Sohar is said to have been done to death. He made certain recoveries from the grove which did not include the torch with the light of which the appellants are said to have been identified by Sohar.